Federal Court Rules That TSA 'Naked Scans' Are Constitutional

Last weekend, a Tennessee woman was arrested at the Nashville airport for disorderly conduct after she refused TSA security measures for her children. The woman didn't want her two children to have to go through a whole-body-imaging scanner. When a Transportation Security Administration officer told her the machines were safe, she said, "I still don’t want someone to see our bodies naked.”

She won't be pleased with a ruling then out of the D.C. Circuit today. This morning, the federal court ruled that the "naked scans" of air travelers do not violate Americans' constitutional rights. Privacy rights group EPIC had sued the Department of Homeland Security, alleging violations of innocent passengers' Fourth Amendment right to be free of unreasonable searches. The court says that argument doesn't fly.

In the opinion [pdf] from the D.C. Circuit Court (the Volokh Conspiracy), Judge Douglas Ginsburg writes that the advance imaging technology is not unreasonable given the security concerns on airplanes, and that people have the option to opt out for a pleasurable patdown. The court notes that some "have complained that the resulting patdown was unnecessarily aggressive," but the judges don't seem overly concerned about that. Ginsburg writes:

On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Good news for body scanner manufacturers Rapiscan and L-3. Bad news for those who don't like having to choose between digital nudity and frisking. Legal scholar Orin Kerr of the Volokh Conspiracy expresses mild surprise at how easily the court dismissed privacy concerns with the TSA screens, as he regards the court as a Fourth-Amendment-friendly one.

There was a small rebuke in the opinion for the TSA. The judges ruled that the TSA had violated an administrative law requiring public comment before issuing a new rule making the body scanners their primary tool for airport security. It would be too disruptive to have the TSA stop using the scanners, writes Judge Ginsburg, but they do expect that the TSA will now take comments. In this case, "better late than never" doesn't really mean much.